Foiling U.S. Plan, Prison Expands in Afghanistan

WASHINGTON — As the Bush administration struggles for a way to close the military prison at Guantánamo Bay, Cuba, a similar effort to scale down a larger and more secretive American detention center in Afghanistan has been beset by political, legal and security problems, officials say.

The American detention center, established at the Bagram military base as a temporary screening site after the invasion of Afghanistan in 2001, is now teeming with some 630 prisoners — more than twice the 275 being held at Guantánamo.

The administration has spent nearly three years and more than $30 million on a plan to transfer Afghan prisoners held by the United States to a refurbished high-security detention center run by the Afghan military outside Kabul.

But almost a year after the Afghan detention center opened, American officials say it can accommodate only about half the prisoners they once planned to put there. As a result, the makeshift American site at Bagram will probably continue to operate with hundreds of detainees for the foreseeable future, the officials said.

Meanwhile, the treatment of some prisoners on the Bagram base has prompted a strong complaint to the Pentagon from the International Committee of the Red Cross, the only outside group allowed in the detention center.

In a confidential memorandum last summer, the Red Cross said dozens of prisoners had been held incommunicado for weeks or even months in a previously undisclosed warren of isolation cells at Bagram, two American officials said. The Red Cross said the prisoners were kept from its inspectors and sometimes subjected to cruel treatment in violation of the Geneva Conventions, one of the officials said.

The senior Pentagon official for detention policy, Sandra L. Hodgkinson, would not discuss the complaint, citing the confidentiality of communications with the Red Cross. She said that the organization had access to “all Department of Defense detainees” in Afghanistan, after they were formally registered, and that the military “makes every effort to register detainees as soon as practicable after capture, normally within two weeks.

“In some cases, due to a variety of logistical and operational circumstances, it may take longer,” Ms. Hodgkinson added.

The obstacles American officials have faced in their plan to “transition out” of the Bagram detention center underscore the complexity of their challenges in dealing with prisoners overseas. Yet even as Bagram has expanded over the last three years, it has received a fraction of the attention that policy makers, Congress and human rights groups have devoted to Guantánamo.

“The problem at Bagram hasn’t gone away,” said Tina M. Foster, a New York human rights lawyer who has filed federal lawsuits on behalf of the detainees at Bagram. “The government has just done a better job of keeping it secret.”

The rising number of detainees at Bagram — up from barely 100 in early 2004 and about 500 early last year — has been driven primarily by the deepening war in Afghanistan. American officials said that all but about 30 of those prisoners are Afghans, most of them Taliban fighters captured in raids or on the battlefield.

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Afghan men in Kabul in February after they were freed from the United States prison at Bagram.Credit
Syed Jan Sabawoon/European Pressphoto Agency

But the surging detainee population also reflects a series of unforeseen problems in the United States’ effort to turn over prisoners to the Afghan government.

In a confidential diplomatic agreement in August 2005, a draft of which was obtained by The New York Times, the Bush administration said it would transfer the detainees if the Kabul government gave written assurances that it would treat the detainees humanely and abide by elaborate security conditions. As part of the accord, the United States said it would finance the rebuilding of an Afghan prison block and help equip and train an Afghan guard force.

Yet even before the construction began in early 2006, the creation of the new Afghan National Detention Center was complicated by turf battles among Afghan government ministries, some of which resisted the American strategy, officials of both countries said.

A push by some Defense Department officials to have Kabul authorize the indefinite military detention of “enemy combatants” — adopting a legal framework like that of Guantánamo — foundered in 2006 when aides to President Hamid Karzai persuaded him not to sign a decree that had been written with American help.

Then, last May, the transfer plan was disrupted again when the two American servicemen overseeing the project were shot to death by a man suspected of being a Taliban militant who had infiltrated the guard force.

The Pentagon initially reported only that the two Americans, Col. James W. Harrison Jr. and Master Sgt. Wilberto Sabalu Jr., were killed May 6 by “small-arms fire.” But American officials said the Afghan guard had opened fire with a semiautomatic rifle as two vehicles carrying senior officers waited to pass through the prison gate. The killings forced more than a month of further vetting of the Afghan guards and the dismissal of almost two dozen trained recruits, Pentagon officials said.

A Spartan Site of Metal Pens

The Bagram Theater Internment Facility, as it is called, has held prisoners captured as far away as Central Africa and Southeast Asia, many of whom were sent on to Guantánamo. Since the flow of detainees to Cuba was largely shut off in September 2004, the Bagram detention center has become primarily a repository for more dangerous prisoners captured in Afghanistan.

Despite some expansion and renovation, the detention center remains a crude place where most prisoners are fenced into large metal pens, military officers and former detainees have said.

Military personnel who know both Bagram and Guantánamo describe the Afghan site, on an American-controlled military base 40 miles north of Kabul, as far more spartan. Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said.

The treatment of prisoners at Bagram has generally improved in recent years, human rights groups and former detainees say, particularly since two Afghan detainees died there in December 2002 after being beaten by their American captors. Two American officials familiar with the Red Cross complaint that was forwarded to the Pentagon over the summer described it as a notable exception.

A Red Cross spokesman in Washington, Simon Schorno, said the organization would not comment on its discussions with the Defense Department. But in remarks about the organization’s work in Afghanistan, its director of operations, Pierre Kraehenbuehl, emphasized on Dec. 13 that “not all places of detention and detainees” are made available to the group’s inspectors.

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Building a detention center at Pul-i-Charkhi proved complicated.Credit
The New York Times

“The fact that the I.C.R.C. does not publicize its findings does not indicate satisfaction with the conditions of any given detention place,” he said on the group’s Web site.

The two United States officials, who insisted on anonymity because of the confidentiality of Red Cross communications, suggested that the organization had been more forceful in private. They said the group had complained that detainees in the isolation area were sometimes subjected to harsh interrogations and were not reported to Red Cross inspectors until after they were moved into the main Bagram detention center and formally registered — after being held incommunicado for as long as several months.

One former Bush administration official said the Pentagon told Congressional leaders in September 2006 that a small number of prisoners held by Special Operations forces might not be registered within the 14-day period cited in a Defense Department directive issued that month. The exceptions were to be “approved at the highest levels,” the former official said.

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Bush administration officials have at times discounted complaints about the crowding and harsh conditions at Bagram by saying the detention center was never meant to be permanent and that its prisoners would soon be turned over to Afghanistan.

Hundreds of Bagram detainees have been released outright as part of an Afghan national reconciliation program. But by early 2006, internal Defense Department statistics showed that the average internment at Bagram was 14.5 months, and one Pentagon official said that figure had since risen.

After a White House agreement by President Bush and Mr. Karzai in May 2005, the plan to transfer the prisoners was drawn up by administration officials and outlined in an exchange of confidential diplomatic notes that August.

The two-page Washington note — the first document to become public showing the terms that Washington has sought from other governments for the transfer of detainees from Guantánamo and Bagram — asks the Kabul administration to share any intelligence information from the prisoners, “utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release,” and “confiscate or deny passports and take measures to prevent each national from traveling outside Afghanistan.”

At the time, some Bush administration officials predicted that transfers from Bagram could begin within six months. Col. Manuel Supervielle, who worked on legal aspects of the transfers as the senior United States military lawyer in Afghanistan, recalled that officials in Washington expected the primary difficulty to be the rebuilding of a cellblock at Afghanistan’s decrepit Pul-i-Charkhi prison to meet international standards of humane treatment.

“We’ve got a bunch of guys we want to hand over to the Afghans,” Colonel Supervielle said, recalling the prevailing view. “Build a jail and hand them over.”

But complications emerged at almost every turn.

Afghan officials rejected pressure from Washington to adopt a detention system modeled on the Bush administration’s “enemy combatant” legal framework, American officials said. Some Defense Department officials even urged the Afghan military to set up military commissions like those at Guantánamo, the officials said.

Officials of both countries said the defense minister, Abdul Rahim Wardak, was reluctant to take responsibility for the new detention center as the Pentagon wanted, fearing he would be besieged by tribal leaders trying to secure the release of captives. The minister of justice, Sarwar Danish, opposed sharing his control over prisons, the officials said.

American officials finally brokered an agreement between the ministries, internal documents show. But that did not resolve more basic questions about the legal basis under which Afghanistan would hold the detainees.

For nearly a year, American military officials and diplomats worked with the Afghan government to draft a plan for how it would detain and prosecute all prisoners captured in Afghanistan. Colonel Supervielle, who had helped set up legal operations at Guantánamo, said the effort in Afghanistan was in some ways more complex. “You weren’t dealing just with a U.S. interagency process,” he said. “It involved the interagency process, bilateral relations with Afghanistan, the military coalition and other international interests.”

The draft law was finally delivered to Mr. Karzai in August 2006. Despite American entreaties, he decided not to sign it after opposition from senior aides, officials said.

The construction of a new detention center at Pul-i-Charkhi also proved more complicated than United States officials had anticipated.

When Afghan contractors broke ground on the $20 million project in 2006, United States officials estimated that the center would hold as many as 670 prisoners. But as the military police colonel overseeing the project toured the site with Afghan and Red Cross officials, they pointed to a significant flaw. In other parts of Pul-i-Charkhi, men were crammed as many as eight to a cell, and used toilets down the hall. To improve security and hygiene, the Americans equipped each two-man cell in the new block with its own toilet.

But because the cultural modesty of Afghan men would make them uncomfortable sharing an open toilet, it was subsequently decided that the prisoners should be held individually, two former officials involved in the project said. That immediately reduced the optimal capacity of the main prison to about 330 detainees, they said, although a Pentagon spokeswoman said its “maximum capacity” was 628 prisoners.

The training of Afghan military personnel to guard and administer the new prison has posed other challenges. After initially budgeting $6 million for guard training, the Defense Department decided it would need about $18 million for training and “mentoring” of guards over three years, officials said.

A first group of 12 Bagram detainees was moved into the Pul-i-Charkhi prison on April 3. Over the next nine months, that number rose to 157 prisoners, including 32 from Guantánamo, official statistics show. Afghan officials decided to release 12 of those detainees soon after their transfer.

American officials said the modest flow had been dictated mainly by the Afghan military, which has wanted to make sure its guards could handle the new arrivals. But some United States officials say they have also had to reassess the Afghans’ ability to hold more dangerous detainees. They said the detention center at Bagram would probably continue to hold hundreds of prisoners indefinitely. “The idea is that over time, some of our detainees at Bagram — especially those at the lower end of the threat scale — will be passed on to Afghanistan,” one senior military official said last year. “But not all. Bagram will remain an intelligence asset and a screening area.”

Ms. Hodgkinson, the deputy assistant secretary of defense for detainee affairs, acknowledged that the military was holding more detainees at Bagram than it had anticipated two years ago and that the Pentagon had no plan to assist the Afghans with further prison-building. But, she added, “A final decision on the higher-threat detainees has not yet been made.”

And even now, the legal basis under which prisoners are being held at the Afghan detention center remains unclear. Another Defense Department official, who insisted on anonymity because she was not authorized to publicly discuss the issue, said the detentions had been authorized “in a note from the attorney general stating that he recognizes that they have the legal authority under the law of war to hold enemy combatants as security threats if they choose to do so.”

Afghan officials said they were still expecting virtually all of the Afghan prisoners held by the United States — with the possible exception of a few especially dangerous detainees at Guantánamo — to be handed over to them.

A spokesman for the Afghan Defense Ministry, Gen. Zaher Azimi, said, “What is agreed is that all the detainees should be transferred.”

Correction: January 12, 2008

Because of an editing error, a front-page article on Monday about the American detention center at the Bagram military base in Afghanistan omitted a reporting credit. Kirk Semple, Carlotta Gall and Abdul Waheed Wafa contributed from Kabul.